A federal district court has enjoined Arizona's anti-BDS law, saying that it likely violates the First Amendment.
This was the litigation I spoke to NPR about, and I remarked there that Arizona's representations in court of what the law actually did seemed far narrower than what was actually contained in the text. The judge here certainly agreed -- she flatly rejected Arizona's attempt to rewrite the law to forbid only a "total" boycott of Israel, and highlighted portions of the statutory text that swept considerably broader.
My main thesis when talking with NPR was many of these laws were passed to score ideological points and so were not drafted with particular care to ensure that they pass First Amendment scrutiny. Those chickens are now certainly coming home to roost.
One question that to me remains open is if Arizona (or another state) could prohibit a state contractor from boycotting Israel in the course of their fulfillment of the contract. The case in Arizona, for example, dealt with an attorney whose (solo practitioner) firm did pro bono work for state prisoners, but who sought to boycott certain companies implicated in settlement activities. His boycott doesn't really intersect with his work for the state, but to the extent that the Arizona law required him to certify he didn't boycott Israel even in his personal capacity in order to receive a state contract, the court here held that was an unconstitutional condition violating his First Amendment rights.
But suppose instead Arizona said "what you do on your time is your business, but you have to certify that you won't boycott Israel in your capacity as a state contractor" (e.g., he couldn't refuse to provide representation to an Israeli-American prisoner, or he couldn't refuse to use some court software program on the grounds that he objected to its manufacturer's ties with the Israeli government)? Would that be permissible? I think it is, at the very least, a much stronger case, as it is more directly tied to the government regulating its agents behavior as workers rather than as citizens. The government has a strong interest in ensuring that its contractors qua contractors, at the very least, actually do their jobs in the manner prescribed. There is a large difference between the government seeking to limit an everyday citizen's (who happens to have a federal contract) ability to boycott HP products as a means of protesting Israel, and the government seeking to limit (say) it's own procurement officer from doing the same in his capacity as a state employee.
That said, even this version wouldn't be a slam dunk: there is significant potential for ambiguity in when a given (boycotting) action is taken "in your capacity as a state contractor". For example, if our attorney doesn't buy HP products because his firm boycotts Israel, is the failure to have an HP printer a boycott taken in their capacity as a state contractor? What if he buys a new printer during the course of his contract?
My instinct is that in neither case would the action be covered -- unless part of his contract tells him to "buy a printer", then the act of purchasing one is not one taking in his capacity as a state contractor. But the First Amendment's concerns about chilling speech thrives on cases of ambiguity, so I still consider this an open question.
In any event, the Arizona law we have doesn't get us close to that scenario, because the Arizona law is not a law that was drafted carefully to try to avoid First Amendment problems but rather one that written sloppily to make a political point. And if you're a Jewish institution unhappy with the political imagery associated with having prominent anti-BDS laws struck down as trampling upon constitutionally protected freedoms, it might be worth rethinking how confident you are in either the ability or the interest of right-wing legislators and apathetic state bureaucrats to invest in drafting and implementing these laws with the sort of care and precision necessary to survive legal scrutiny.